Ending a tenancy

 

Tenants can be evicted only according to legal process. VCAT can block an illegal eviction. Tenants must give 28 days notice if they wish to vacate a property. Landlords can seek compensation for breaking a lease. Being in arrears with rent can lead to a 14-day Notice to Vacate. Failure to pay a bond may result in as notice to vacate. If a property is to be renovated or sold tenants must receive 60 days notice.

How is a tenancy agreement terminated?

If the landlord gives a valid Notice to Vacate or the tenant gives a valid Notice of Intention to Vacate, the tenancy agreement ends when:

the tenant vacates the premises; or

the landlord obtains a possession order from VCAT and the tenant vacates; or

a warrant of possession is executed.

For information about Intention to Vacate and Notice to Vacate, see below.

Illegal evictions

A possession order does not, by itself, allow the landlord to evict the tenant. The landlord must also obtain a warrant of possession from the principal registrar of VCAT. The warrant of possession is then executed by the police, the locks changed and the tenant evicted. The landlord may or may not be present.

It is an offence for a landlord or their agent to require or compel the tenant to vacate the rented premises except in accordance with the RT Act. It is also an offence for the landlord or their agent to obtain possession of the rented premises by entering them, whether the entry is peaceable or not. It is a defence if the landlord can show that they had reasonable grounds to believe that the tenant had abandoned the premises (s 229).

If the landlord threatens the tenant with an illegal eviction, then the tenant should make an urgent application to VCAT under sections 452 and 472 of the RT Act for a restraining order, by immediately attending VCAT in person. They will need to show evidence of the threat.

It is strongly recommended in such circumstances, that the tenant take photographs of their personal belongings, tenancy agreement, rent rental receipts and other documents to support the existence of their tenancy and the goods inside the premises at the time of a possible illegal eviction. It is good practice to email these to the tenant, for accessibility and safe keeping.

If the landlord has threatened violence, the tenant may also have grounds for obtaining an intervention order from the Magistrates’ Court.

If the landlord attempts to illegally evict the tenant, the tenant should call the police. The police should restrain the landlord from evicting the tenant; however, they are often reluctant to act unless the tenant has a restraining or intervention order against the landlord.

If the tenant has been illegally evicted, they should apply immediately (in person if possible) for an urgent hearing at their closest convened VCAT, or if not available, at VCAT at 55 King Street, Melbourne. The tenant should ask VCAT for an order restraining the landlord from further illegal actions, and an order under section 472 that requires the landlord to allow the tenant back onto the premises.

Alternatively, such conduct may amount to a repudiation of the agreement, and the tenant may seek to recover their goods and apply for compensation for the tenancy being unlawfully terminated. This is best discussed with VCAT or a legal advisor in light of the circumstances.

In the event of illegal eviction, the tenant should lodge a complaint with CAV or the police and ask for the landlord to be prosecuted for a breach of section 229. The tenant can also make a compensation claim against the landlord for any loss or damage caused by the illegal eviction. The tenant should be advised to keep receipts and details of any expenditure caused by the illegal eviction (such as the cost of alternative accommodation).

For VCAT contact details, seeAdvice and contacts”.

Intention to Vacate – tenant wants to leave

28-day Notice of Intention to Vacate

If the tenancy agreement is periodic (seeFixed-term and periodic agreements”) and the tenant wants to leave, the tenant must give the landlord at least 28 days’ notice that they intend to vacate the premises (s 235). The notice must be in writing (s 318(1)) and must be signed (s 318(3)). This notice is called a Notice of Intention to Vacate. The tenant can give this notice in the form of a letter, or on the Notice to Landlord form, which can be downloaded from the CAV website.

If the lease is for a fixed term the tenant may only give a valid Notice of Intention to Vacate that expires after the last day of the fixed term.

The notice should be delivered personally or sent by ordinary or registered mail (registered mail is preferable) (s 506). The tenant must make sure that the landlord receives 28 days clear notice. This means that if the notice is sent by registered mail, the tenant should allow an extra two days for delivery.

Alternatively, it is possible for a Notice of Intention to Vacate be served via email providing it is compliant with the Act, and that the landlord or agent has given consent to be served via email within the meaning of the Electronic Transactions (Victoria) Act 2000 (Vic).

Premises unfit for human habitation

A tenant can serve a landlord with an immediate Notice of Intention to Vacate if the premises are unfit for human habitation or have been destroyed totally, or to such an extent as to be rendered unsafe. This can be done prior to the tenant entering into possession or during the tenancy (ss 226, 238). This notice can be served regardless of whether the tenancy agreement is fixed-term or periodic.

Tenants should be cautious about serving a notice on these grounds. If the landlord disputes the claim that the premises are unfit for human habitation, the tenant will have to establish a proper basis for serving this notice at VCAT. For this reason, it is preferable to include the statement and evidence specifically stating why the premises are unfit for habitation in the Notice of Intention to Vacate itself. Evidence such as photographs, witness statements, reports from trades people, engineers or a report from the local council or expert builders or surveyors obtained to may be obtained to support the notice.

There would generally need to be serious problems for a premises to be considered unfit for human habitation.

Breaking a fixed-term lease (lease breaking)

A tenant may want to vacate the premises before the end of a fixed-term agreement. Generally – in the absence of an agreement to the contrary – if the tenant moves out prior to the end of the fixed-term lease, the tenant will be liable to compensate the landlord for breaking the lease.

Prior to handing back the keys to the premises, tenant are strongly encouraged to seek legal advice, to determine if any other avenues available to terminate the tenancy under the RT Act.

Once the tenant has vacated the premises, the tenancy agreement has terminated and they are no longer liable to pay rent. However, the landlord is entitled to make a claim for compensation for any period of lost rental that has resulted from the tenant moving out before the end of the fixed term.

Generally, tenants are advised to only pay rent up until the date the keys are returned. From this point, the tenant will remain liable for reasonable compensation at an amount similar to rent. Generally, if the rent continues to be paid, there is less incentive for the landlord to locate new tenants.

After returning the keys, tenants may attempt to recover their bond. Such bond claims may be adjourned depending on the circumstances. Tenants should monitor the landlord’s efforts to re-let the premises. Once new tenants have been found, the landlord can apply to VCAT for compensation.

The landlord will be required to justify to VCAT the reasonableness of the amount compensation claimed.

What can the landlord claim?

If the tenant breaks a fixed-term tenancy agreement, the landlord can make a claim for compensation under section 210 of the RT Act for any loss or damage that results from the tenant ending their lease early. Such costs may include:

a re-letting fee (calculated on pro-rata basis);

advertising costs (calculated on pro-rata basis);

rent for a reasonable time until new tenants move in, or until the end of the fixed-term lease – whichever is less.

Generally, tenants are not liable for advertising and reletting fees upon breaking a fixed-term lease that is a renewal of the original fixed term (see Craig v Mitchell (Residential Tenancies) [2015] VCAT 597 (27 April 2015)).

Reasonable costs

What constitutes reasonable costs will be determined by VCAT, which will consider factors such as:

the amount of notice, if any, given to the landlord by the tenant;

whether the tenant or the landlord advertised the premises for a new tenant;

the length of time left to run on the fixed term;

any action taken by the landlord or their agent to find new tenants; and

the reasonableness or otherwise of any refusal by the landlord of prospective new tenants.

Costs such as re-letting fees may not apply for private landlords. Consideration should also be given with respect to lease breaking of renewed leases, and the losses a landlord might have ordinarily had to bear should a new fixed-term agreement not be entered into. This is a matter VCAT may wish to consider.

Landlord should minimise loss

The landlord is not automatically entitled to lease breaking costs. Generally, tenants are advised not to sign any form that requires acknowledgement of liability of the above lease breaking fees. Any terms in the tenancy agreement itself, or subsequently signed regarding lease breaking may not necessarily be enforceable (s 27), as the actual loss must still be established and evidence to VCAT.

In lieu of signing any acknowledgement regarding lease breaking liabilities, tenants should affirm, on the date they gave notice of intention to vacate, that they will not pay any further rent until determined by VCAT, and that the landlord has an obligation to mitigate loss pursuant to section 211(e) of the RT Act. Parties may also wish to refer to the Tenancy Database information in this chapter.

The landlord has a duty to keep their loss to a minimum (s 211(e)). If the landlord does anything to increase the costs of the lease break (e.g. putting up the rent so that it is more difficult to find replacement tenants), then the tenant should argue that their liabilities should be substantially reduced. Tenant should attempt to minimise losses.

The tenant should check that the landlord or agent is prompt in advertising the property, and that they do not advertise it at a higher rental than the tenant is paying. They should also keep a record of how many prospective tenants inspect the property.

The tenant should also be as co-operative as possible with the landlord or agent’s attempts to find new tenants. For example, undertaking additional advertising and co-operating with inspections by prospective tenants will help to minimise the landlord’s loss for which the tenant may be liable. The tenant should also apply to have their bond returned 10 business days after the termination of their tenancy. This is to avoid the landlord claiming lease-breaking costs from the bond (seeRecovering bond money”).

Tenants may also claim compensation where the landlord has, by the act or omission, caused a tenancy to terminate during the fixed term. Such examples include mortgage default, or letting of premises that are not zoned for residential use, and being required to leave (seeCompensation claims”).

Application for reduction of a fixed-term agreement

A landlord or a tenant under a fixed-term tenancy agreement may apply to VCAT for an order reducing the term of the agreement, and making any other variations to the agreement that are necessary as a result of that reduction (s 234). Applications are made using the general application form from the VCAT website. (SeeAdvice and contacts”.)

The tenant may apply under section 234 only while they remain in possession of the premises. Once the tenant has given up possession of the premises, the tenancy agreement is terminated and therefore cannot be varied or reduced. Thus, it is critical – if a tenant intends on making such an application – that they hold onto the keys until the hearing is determined. If the reduction is granted, they should then give the keys back on the day that the tenancy is to end, according to the order.

VCAT may only reduce the term of an agreement if it is satisfied that:

there has been an unforeseen change in the applicant’s circumstances; and

the applicant would suffer severe hardship if the term was not reduced; and

the applicant’s hardship would be greater than the hardship suffered by the respondent if the term was reduced.

Intervention orders or other orders given under the Family Violence Protection Act 2008 (Vic) (“FVPA”) and Personal Safety Intervention Orders Act 2010 (Vic) (“PSIOA”) are generally considered by VCAT to be prima facie grounds (proof) that the applicant has experienced an unforeseen change in circumstances, which will cause the applicant to suffer severe hardship if the applicant:

is excluded from the rented premises under a family violence intervention order; or

is a protected person under a family violence intervention order and is seeking to reduce the term of the agreement to protect their own safety or the safety of their children.

The amendment allows for one tenant to apply to VCAT without the support of any remaining co-tenants. VCAT may order that one of several co-tenants is removed from the tenancy agreement, or it may shorten the fixed-term agreement for all of the tenants.

VCAT may determine what compensation, if any, should be paid by the applicant due to the reduction of the fixed term (s 234(3)). In some cases, but not often, VCAT may award compensation equivalent to the tenant’s liability for lease-breaking costs.

In the case of a section 234 application, a final intervention order or even an interim intervention order is not necessary for the application to be successful. However, VCAT will need to be convinced of the surrounding circumstances relating to the hardship. Consideration should be given with respect to examination and evidence that may be necessary to justify the application.

Generally, a section 234 application will not dismissed unless there is unsatisfactory hardship, but the amount of compensation may be scaled to reflect the hardship imposed on each party. If a section 234 application is dismissed, the tenancy is not terminated, and the tenant will need to consider their alternatives such as lease breaking or assignment.

Application for creation of a tenancy agreement

“Creation applications” (to create a new tenancy) generally arise in two types of circumstances:

if there is someone living in the premises as their primary place of residence, who is not a tenant, and the all the named tenants disappear, abscond or are deceased; or

if, as a result of a relational breakdown, one party obtains final intervention order with a clause excluding a named tenant.

A person who resides in rented premises as their principal place of residence and who is not a tenant at those premises may apply to VCAT for an order that the landlord enter into tenancy agreement with them (s 232). The person must satisfy VCAT that:

the applicant could reasonably be expected to comply with the duties of a tenant under the RT Act; and

the applicant would suffer severe hardship if compelled to leave the premises; and

the applicant’s hardship would be greater than the landlord’s (if the order were made).

Creation of tenancy – intervention orders

The FVPA and PSIOA introduced into the RT Act the power for a protected person named in a final intervention order to apply to VCAT for an order terminating the existing tenancy agreement with a person excluded from the rented premises by the intervention order, and requiring the landlord to enter into a new agreement with the protected person (and other persons named on the application) (s 233A–D RT Act). The applicant must be a party to the tenancy agreement, or have been residing in the rented premises as their principal place of residence.

In deciding whether to make such an order, VCAT must be satisfied that:

the protected person (and others) could reasonably be expected to comply with the duties of a tenant under a tenancy agreement;

the protected person or their children would be likely to suffer severe hardship if they were compelled to leave the premises;

the hardship suffered by the protected person would be greater than any hardship the landlord would suffer if the order was made;

it is reasonable to do so given the length of the exclusion under the final order and the length of the existing tenancy agreement; and

it is reasonable to do so, given the interests of any other tenants (other than the excluded tenant) (s 233B).

The new tenancy agreement must be on the same terms and conditions as the existing agreement, as far as possible. VCAT has the power to order an inspection of the premises in order to determine any liabilities under the terminated tenancy agreement (s 233C). This may relate to adjustments to the bond, damage to the premises, utility bills or other liabilities that may be appropriate to apportion between parties.

Excluded persons are prohibited from cross-examining a protected person without leave of VCAT (s 233D). In such proceedings, it is considered appropriate to use remote witness facilities for hearings. Applicants can have a support person or representative at the hearing.

Applications to VCAT for termination and/or creation of a tenancy agreement on the basis of an intervention order should be made using a Protected Person Application, available on the VCAT website. This is important to ensure the protected person’s address is not inadvertently disclosed.

Parties affected by intervention orders should seek support of the family violence support workers in both the Magistrates’ Court and VCAT.

(For further information, visit VCAT’s website at www.vcat.vic.gov.au.)

Notice to Vacate – landlord wants tenant to leave


NOTE

A person who has been given an immediate Notice to Vacate should immediately contact the Tenants Union for advice (seeAdvice and contacts”).


The RT Act permits a landlord to give the tenant a Notice to Vacate in certain circumstances. The amount of time the landlord must give the tenant to vacate varies depending on the type of notice given.

The only party that can lawfully enforce an eviction is the police, and this requires a warrant to be issued by VCAT. Warrants are only issued by VCAT if a possession order has been made by VCAT after hearing the matter. A possession order hearing can only take place if a tenant has not left in response to a valid Notice to Vacate that has been served correctly.

Thus, a tenant does not need to vacate on the termination date given in the Notice to Vacate. If the tenant remains in possession of the premises the tenancy agreement is not terminated until a warrant of possession is executed. If the tenant wishes to remain in the premises there may be grounds on which they can challenge a Notice to Vacate. (For further details, seeProcedure for ending a tenancy”).

In many applications for a possession order, other than end of fixed term tenancy or “no reason” Notices to Vacate, the landlord must specify the acts, facts, matters and circumstances, including relevant dates, that are to be relied upon as the basis for giving the Notice to Vacate. Parties should consult the VCAT rules to ensure compliance. If there is any doubt regarding the validity of the Notice to Vacate, parties should seek legal advice.

Below is a selection (non-exhaustive) of reasons for which a Notice to Vacate might be issued.

Immediate Notice to Vacate

Malicious damage

A landlord may give a tenant an immediate Notice to Vacate when the tenant or their visitor has maliciously damaged the rented premises or common areas (s 243). The tenant or their visitor must have intended to cause the damage.

Endangering safety of occupiers of neighbouring premises

The landlord may give the tenant an immediate Notice to Vacate if the tenant or the tenant’s visitor endangers the safety of occupants of neighbouring premises (s 244).

If the landlord gives the tenant an immediate Notice to Vacate under section 244, they must prove that the tenant’s (or visitor’s) behaviour is such that the safety of neighbours is clearly endangered. It is not enough that the neighbours feel threatened by the tenant. The danger must also be continuing at the time that the Notice to Vacate is given.

These cases often involve quite complicated questions of law and fact.

14-day Notice to Vacate

Rent arrears

Rent accrues daily (s 39). If a tenant owes 14 days or more rent a landlord may give them a 14-day Notice to Vacate (s 246). VCAT has the discretion to adjourn or dismiss a landlord’s application for a possession order on the basis of rent arrears if it believes satisfactory arrangements have been or can be made to avoid financial loss to a landlord (s 331). It is, therefore, important to present evidence showing:

the reason the tenant fell into arrears;

the tenant’s ability to pay the rent on time in the future; and

the tenant’s ability to repay the arrears within a finite time.

The sort of evidence that should be produced by a tenant includes:

a statement from a financial counsellor outlining their income and expenditure and how much they can afford to pay for each instalment (if they are offering to pay by instalments) (see MoneyHelp in “Advice and contacts” at the end of this chapter);

medical certificates if the tenant has been ill, injured or unable to work;

witnesses who can give evidence about why the tenant fell into arrears, or confirming that they will be able to pay the arrears (e.g. from a new employer, social worker);

copies of bills if the tenant has had unexpected expenses; and

evidence of income (tax returns, pay slips, etc.).

The tenant should also ask anyone able to provide evidence in support of their case to attend VCAT hearing to give evidence in person. It is better to have a witness attend the hearing than give their evidence in writing or a statutory declaration.

At the hearing the tenant should explain how they fell into arrears and how they intend to repay them. If VCAT is convinced that the tenant had a good reason for falling behind in the rent, that the tenant intends to repay the amount owed, and that the tenant can afford to pay the rent in the future, it will generally exercise its discretion not to evict the tenant.

If VCAT does decide not to evict the tenant, it will generally order that the landlord’s application be adjourned for a certain period (usually three or six months). If the tenant fails to pay the instalments, or if they fall behind in their rent again during this period, the landlord can ask VCAT to re-open the case. The landlord does not have to serve any further notices on the tenant in these circumstances.

It is vital that a tenant understands they must comply with a VCAT order or face eviction. If the tenant defaults on a repayment agreement or accrues further arrears, it will be difficult to secure another adjournment.

If the tenant does make the repayments as ordered and has not incurred any further arrears, VCAT must dismiss the application once the period of adjournment has elapsed (s 331(3)).

Failure to pay bond

The landlord can serve the tenant with a 14-day Notice to Vacate if the tenant fails to pay the bond, and the agreement says a bond must be paid (s 247).

Illegal purposes

The landlord can serve the tenant with a 14-day Notice to Vacate if the tenant uses or permits others to use the premises for any purpose that is illegal at common law or under an Act (s 250).

A distinction must be drawn between an offence that arises out of the use of the premises (e.g. operating an unlicensed brothel) and the premises being merely the scene of an offence (e.g. an assault).

Whether the tenant has permitted the premises to be used for an illegal purpose may become an issue. It is not decided what amounts to “permission”. It has been suggested that a notice under this section may be substantiated where:

a tenant knows of the use of the premises for an illegal purpose; and

fails to take steps to prevent the illegal use.

However, there may be circumstances in which the offender overbears the tenant’s will, so it cannot be said that the tenant voluntarily permitted the offender to remain on the premises (e.g. where the tenant is the victim of domestic violence by the offender). It is likely that such an incident involved the police and any charges are relevant.

Assignment or sub-letting without consent

The landlord can serve the tenant with a 14-day Notice to Vacate if the tenant assigns, sub-lets, or purports to assign or sub-let, the premises without the landlord’s consent (s 253) (seeSub-letting”).

Successive breaches of the tenant’s duties

Section 249 permits a landlord to serve a 14-day Notice to Vacate for successive breaches of a duty provision (seeLandlord and tenant duties”).

This requires the landlord to have served two previous breaches of duty notices for breaches of the same “duty provision” (s 249(1)(b)). Upon the third breach of the same duty provision, a Notice to Vacate may be served on the tenant. The landlord must prove on the balance of probabilities each breach has occurred. If any breach fails to be proven, or the notice does not adequately set out the details and circumstances upon which notice was issued, then the Notice to Vacate may be dismissed. This may or may not preclude subsequent applications depending on the reasoning by VCAT regarding the validity of any of the Breach of Duty Notices.

Non-compliance with a compliance order

If a tenant has been given a Breach of Duty Notice (s 208), a landlord may make application for a compliance order (s 209). If a breach is proven, VCAT may make a compliance order. To be a valid compliance order, the order must contain a caution that if the tenant does not comply with order, the landlord may serve a Notice to Vacate (s 212 (4)).

If this order is not complied with, then the landlord may serve a Notice to Vacate pursuant to section 248. The landlord bears the onus of proof of showing there has been non-compliance with the order. There is some, but limited discretion, afforded to VCAT with respect of trivial non-compliance that is not a recurrence of a previous breach and is not likely to occur again (s 332).

Note that the Director of Housing sometimes refers to Breach of Duty Notices and the associated mechanisms as “strikes”. There are no “strikes” in the RT Act. This language refers to successive breaches of duty or compliance orders, and their subsequent notices to vacate. All such matters must be adjudicated by VCAT. However, the policy of when a “strike” is an issue and the decision to pursue an eviction is a matter of administrative discretion according to the director’s policy. SeeSocial housing” and “Tenancy and human rights”.

60-day Notice to Vacate

Premises to be occupied by landlord or landlord’s family

The landlord may give the tenant a 60-day Notice to Vacate if the premises are to be occupied by:

the landlord, landlord’s partner, son, daughter, parent or partner’s parent; or

a person who normally lives with the landlord and is substantially or wholly dependent on the landlord (s 258).

The Notice to Vacate should specify the relationship of the family member or dependent person. The landlord or their family member must intend to occupy the premises immediately after the termination date in the Notice to Vacate. The notice is likely not valid if a delay is planned between the termination date and the date the family member or landlord will take occupation of the premises.

If there is a fixed term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

A landlord who obtains possession of the premises after serving a notice under this section must not re-let the premises to another person within six months of giving this notice (s 264(1)). This prohibition does not apply to the landlord renting the premises to the person referred to in the notice (s 264(2)).

Premises to be sold

The landlord may give a 60-day Notice to Vacate if the premises are to be sold or offered for sale with vacant possession (s 259).

The landlord must intend to sell the premises or offer them for sale immediately after the termination date in the Notice to Vacate.

If the Contract of Sale contains conditions, which if not satisfied entitles a party to terminate a contract, the landlord may, within 14 days after the last of these conditions is satisfied, give the tenant a Notice to Vacate (s 259(2)).

If there is a fixed term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

Premises to be repaired, renovated or reconstructed

The landlord may give the tenant a 60-day Notice to Vacate if the landlord intends to repair, renovate or reconstruct the premises, and the work cannot be carried out without vacant possession (s 255).

The landlord must have obtained all necessary permits and consents to do the work prior to issuing the Notice to Vacate (s 255(1)(b)).

The tenant can challenge the notice if they believe that the renovations do not necessitate them moving out. The tenant must provide evidence to that effect (e.g. statements from tradespeople, photographs and witness statements).

The key question may be whether such work is so extensive as to require vacant possession. The landlord must also be able to demonstrate to VCAT that they have all necessary permits, if applicable.

If there is a fixed-term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

The prohibition on re-letting premises for six months after the date on which the notice was given does not apply to notices issued under section 255.

Premises to be demolished

The landlord may give a 60-day Notice to Vacate if they intend to demolish the premises immediately after the termination date (s 256).

The landlord must have obtained all necessary permits and consents to do the work prior to issuing the Notice to Vacate (s 256(1)(b)).

The landlord must demonstrate to VCAT that they have all the necessary permits to demolish the premises. The local council should be able to tell the tenant if a demolition permit has been granted. If the landlord cannot show they have the permits, the tenant can ask VCAT to dismiss the landlord’s application for possession.

If there is a fixed term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

A landlord who obtains possession of the premises after serving a notice under this section must not re-let the premises to another person within six months of giving this notice (s 264(1)).

120-day Notice to Vacate for no specified reason

A landlord may give a tenant a 120-day Notice to Vacate without specifying a reason (s 263). If there is a fixed-term tenancy agreement, the notice must not specify a termination date that is earlier than the last day of a fixed-term tenancy agreement (s 266).

The landlord cannot give a 120-day Notice to Vacate for no specified reason while an order made by VCAT relating to rent is in force (s 265).

Challenging a “no reason” Notice to Vacate

If a landlord gives a Notice to Vacate under section 263 in response to a tenant exercising, or proposing to exercise, a right under the RT Act (e.g. requesting repairs), the notice is not valid.

In order for VCAT to consider whether the Notice to Vacate is retaliatory, the tenant must have exercised or attempted to exercise a right provided by the RT Act. The notice may not be considered retaliatory merely because the tenant had an argument or a personal dispute with the landlord.

The tenant has 60 days after the day on which a 120-day notice is given to apply to VCAT to make a pre-emptive challenge to the validity of the notice. If the tenant pre-emptively challenges the Notice to Vacate, the onus is on the tenant to prove the grounds of invalidity (i.e. the connection between the tenant’s exercise of a right and the service of the notice). If the grounds alleged are determined to be unrelated, the tenant cannot seek to re-raise the same issue before VCAT at the possession order hearing.

If the tenant does not make a pre-emptive challenge, it is still open for VCAT to consider retaliation arguments under section 266(2) at the possession order hearing.

Other notices

Notice to Vacate to end a fixed-term agreement

If the tenancy is for a fixed term of six months or more, the landlord may give the tenant a 90-day Notice to Vacate that specifies the termination date as the date that is the end of the fixed-term agreement (s 261).

When the tenancy is for a fixed term of less than six months, the landlord may give a 60-day notice that specifies the termination date as the date that is the end of the fixed term (s 261).

If the landlord gives a Notice to Vacate under section 261 in response to or retaliation for the tenant’s exercise or proposed exercise of a right under the RT Act (e.g. requesting repairs), the notice is invalid (s 266). The tenant has 28 days after the day on which a 90-day notice is given to apply to VCAT and challenge the validity of the notice. They have 21 days in the case of a 60-day notice (s 266). If the tenant does not apply within the specified time, they can argue that the notice is retaliatory when the landlord applies to VCAT for possession.

Strictly speaking, “retaliation” is limited to sections 261 and 263. However, if tenants believe other notices are used in retaliation, they should place the landlord on notice of section 264 and monitor the property after termination of the tenancy.

While not strictly relevant, evidence supporting the use of other Notices to Vacate for other grounds that are in retaliation, should be briefly put in evidence with respect to credibility of the landlord’s conduct being in good faith.

Notice to Vacate by mortgagee

When a mortgage over the premises was entered into before the tenancy agreement was entered into, and the mortgagee becomes entitled to possession of, or the right to exercise a power of sale over the premises, the mortgagee may give the tenant a 28-day Notice to Vacate (s 268). This notice may be given during a fixed-term or periodic tenancy agreement.

A tenant may have an action in compensation against their former landlord, however they will not be able to prevent the mortgagee from taking possession of the premises if the procedure under the RT Act is complied with. However, in some cases it is possible to negotiate with the mortgagee about the time in which it makes application to VCAT for a possession order.

Mortgagees are generally still required to apply for possession via VCAT. However, it is important if a mortgagee contacts the tenant, to place them of notice of the tenant’s occupation and interest under the RT Act.

Notice to Leave, offences and suspensions

The RT Act contains specific provisions relating to violence on “managed premises”. Managed premises are defined as rooming houses, caravan parks and “managed high density buildings” which are buildings that contain two or more rented premises and that have an onsite manager.

A Notice to Leave is different to a Notice to Vacate. Only a manager of managed premises may give a notice to leave (s 368). A “manager” includes an on-site manager, rooming house owner, caravan park owner or site owner. An “onsite-manager” is specifically defined as a person whose duties include security, day to day operational responsibility, and who is employed to be present, or is available to be present, at least seven hours a day, five days a week (s 367).

A manager may give the tenant or the tenant’s visitor a Notice to Leave the premises if they have reasonable grounds to believe that a serious act of violence by the tenant has occurred on the premises, or that the safety of any person on the premises is in danger from the tenant.

A Notice to Leave under this section 368 must be given as soon as it is possible for the manager to safely do so after the serious act of violence has occurred (s 326(4)).

A Notice to Leave must be in the prescribed form (s 368). A Notice to Leave has immediate effect. The tenant or visitor must not remain on the premises after receiving the notice (s 369). Notice to Leave forms are available to download from the CAV website at www.consumer.vic.gov.au.

A tenancy agreement or residency right is suspended when the tenant is given notice, but the tenant must continue to pay rent (s 370). The suspension remains in force for two full business days after it commences (s 371). It is an offence to re-enter the managed premises during the suspension (s 372).

The manager must tell the principal registrar of VCAT that the Notice to Leave was given. They must do so no later than the end of the next business day, after the day on which the Notice to Leave was given (s 373).

If within these two business days, the manager of premises applies to VCAT for an urgent hearing, the suspension continues until the matter is determined. For this reasons, prior to re-entering the premises parties should contact VCAT to confirm if any application has been made, and if so, at what time the application was lodged.

If the landlord has not made an application to VCAT within two business days, the notice lapses and the tenant can return. The landlord must not allow any other person to occupy the premises while the suspension is in force (s 377).

It is an offence to give a Notice to Leave or purported Notice to Leave without reasonable grounds. If reasonable grounds cannot be established, the tenant may seek to apply for compensation. However, careful consideration should be required with respect to the evidence that may be adduced in the proceeding.